Saturday, February 28, 2009
In a very funny op-ed, Gail Collins weighs in on product placement in soap operas (oh, sorry) daytime dramas, and discusses where else we've seen sponsors' items placed prominently in news programs and elsewhere. For those wondering why it was happening, she sheds some light on the reasons, and on why it is likely to continue.
From the New York Times's Brent Staples, "The Ape in American Bigotry, From Thomas Jefferson to 2009." Provocative and interesting reading in the wake of the controversy over the publication of that cartoon in the New York Post. Here's extensive commentary from the Huffington Post. The NAACP has asked Fox stations to join in a protest.
Friday, February 27, 2009
For a long time the Supreme Court of the United States has assumed that the government has a compelling interest in protecting children from non-obscene, sexually explicit speech. In addition, the Court has also held that radio and television broadcasting receive less First Amendment protection than other forms of media such as cable and satellite television and the internet. These holdings have led the Federal Communications Commission to try and censor non-obscene indecency and invectives from the airwaves and also generated numerous attempts by Congress to censor the internet to protect our children. This article argues that there is no substantial evidence demonstrating that children are seriously harmed by non-obscene sexually explicit speech, and therefore the government does not have a compelling interest in keeping children away from such speech. In addition, the original rationale for the Court's decision that broadcasting receives less First Amendment protection than other media, i.e., that broadcasting is uniquely pervasive inside the home, is no longer true and the Court should therefore find that television and radio broadcasters should receive the same First Amendment protections as other media. This article concludes that, in light of the fundamental principle of First Amendment law that the government is not allowed, absent a compelling interest, to censor speech because of the message and/or potential harm it conveys, unless and until there is substantial evidence that non-obscene constitutionally protected speech harms our children, the decision about how our children should be raised and what speech they can hear should be made by parents and teachers not by the state.
Download the article from SSRN here.
Thursday, February 26, 2009
For Federal judges, a life-tenure also comes with a life-long publishing deal. While some judges remain faithful to the rigid framework of judicial opinion writing that dominates the shelves of law libraries throughout the country, others utilize certain cases to summon their inner novelist or poet to add life to the pages of the Federal Register.
The use of humor, poetry, and popular culture in judicial opinions is not without its criticism. This paper is divided into two main topics; the first discusses the judge as an author. The section will begin with an examination of the audience of judicial opinions and an outline of the different styles of judicial opinion writing. The section will also examine the advantages and disadvantages of using literary tools to advance the law.
The second section addresses the role of the artist as a judge. This section will study a small segment of judges who, in addition to the law, maintain an outside career as an author or artist. Judges who fit into this group include authors of books, operas, and magazine articles, and their opinions are often written in a manner which reflects their experience. This section will also discuss the advantages (and potential drawbacks) of having these unique judges deciding cases dealing with a wide range of author's issues, including copyright and free speech, both substantively and stylistically.
Download the paper from SSRN here.
That Australian convicted of lese-majeste has been pardoned by the King of Thailand. Harry Nicolaides has returned home after nearly six months in jail. He had self-published a book, which sold seven copies, in which he discussed the sex life of an heir to the throne, presumed to be the Crown Prince of Thailand. Read more here.
This paper involves a comparative examination of free speech principles as applied in the context of Holocaust denial. It also involves a comparative examination of constitutional values, and how those values play out in the Holocaust denial context.
Download the paper from SSRN here.
Michelle Shamblin’s article, Silencing Chicken Little: Options for School Districts after “Parents Involved,” 69 La. L. Rev. 219 (2008), has won the annual national award given by Scribes (The American Society of Legal Writers). Articles from law reviews throughout the county were submitted for this competition, and Ms. Shamblin’s article was chosen as the best student-written article of the year in a law review or journal.
This is a major accomplishment for Ms. Shamblin, the Louisiana Law Review and the LSU Law Center. Michelle will be presented with her award at the dinner of the National Conference of Law Reviews, held in Baton Rouge on March 19, 2009.
Louisiana State University Law Center congratulates Ms. Shamblin for this outstanding accomplishment and we are grateful that her scholarship has brought recognition to the Louisiana Law Review.
FindLaw notes that a grievance hearing is set for today at which Actors Equity reps will hear details of the producers' complaint against actor Jeremy Piven, who left the Broadway production of Speed the Plow last year. He was reported to be suffering from mercury poisoning.
The Islamic law of speech diversity recognizes two distinct divine rights, one applying to speech communities and the other to individuals. The divine right to language allows each speech community to preserve and celebrate its native language free of coercion and disrespect from other speech communities. Native languages are the assets of speech communities. The Islamic law prohibits coercive degradation of native languages but at the same time it interposes no barriers in learning other languages. Closely related to the right to language is the divine right to individual self-expression or self-determination. Each human being is unique because God, the Master-Artist, shapes each human being with special attention. Social, economic, and legal barriers that refuse to recognize special talents or refuse to accommodate disabilities are incompatible with the divine plan. When individuals are given the maximum liberty allowed under Islam to pursue sciences, arts, knowledge, sports, and spirituality, Muslim communities will prosper. The study recommends that Muslim states recognize linguistic diversity and the right to personal self-determination in their positive law, including national constitutions.
Wednesday, February 25, 2009
A British Member of Parliament has received a three month prison sentence for "texting" while driving; he was driving dangerously as well at the time and hit another car on December 25, 2007; the driver was killed. The MP, Lord Ahmed of Rotherham, admitted he was sending and receiving text messages while operating his vehicle. His attorneys pled for leniency, noting that he stopped and tried to give the other driver aid at the scene. The judge who sentenced him said that the texting had no effect on the dangerous driving, and the solicitor involved in the case made the point to the media that "he thought his client had been used as a "scapegoat" by those attempting to drive home the message about not using a mobile phone while at the wheel." He said he would appeal. Read more here in a BBC story.
The Supreme Court has reversed a 9th Circuit decision and found unanimously for AT&T (Pacific Bell Telephone) in Pacific Bell Telephone v. Linkline. Writing for the Court, Chief Justice Roberts held,
The plaintiffs in this case, respondents here, allege that a competitor subjected them to a "price squeeze" in violation of § 2 of the Sherman Act. They assert that such a claim can arise when a vertically integrated firm sells inputs at wholesale and also sells finished goods or services at retail. If that firm has power in the wholesale market, it can simultaneously raise the wholesale price of inputs and cut the retail price of the finished good. This will have the effect of "squeezing" the profit margins of any competitors in the retail market. Those firms will have to pay more for the inputs they need; at the same time, they will have to cut their retail prices to match the other firm's prices. The question before us is whether such a price-squeeze claim may be brought under § 2 of the Sherman Act when the defendant is under no antitrust obligation to sell the inputs to the plaintiff in the first place. We hold that no such claim may be brought.
1. A straightforward application of our recent decision in Trinko forecloses any challenge to AT&T's wholesale prices. In Trinko, Verizon was required by statute to lease its network elements to competing firms at wholesale rates.... The plaintiff -- a customer of one of Verizon's rivals -- asserted that Verizon denied its competitors access to interconnection support services, making it difficult for those competitors to fill their customers' orders. ...The complaint alleged that this conduct in the upstream market violated § 2 of the Sherman Act by impeding the ability of independent carriers to compete in the downstream market for local telephone service. Ibid.
We held that the plaintiff's claims were not actionable under § 2. Given that Verizon had no antitrust duty to deal with its rivals at all, we concluded that "Verizon's alleged insufficient assistance in the provision of service to rivals" did not violate the Sherman Act. ... Trinko thus makes clear that if a firm has no antitrust duty to deal with its competitors at wholesale, it certainly has no duty to deal under terms and conditions that the rivals find commercially advantageous.
In this case, as in Trinko, the defendant has no antitrust duty to deal with its rivals at wholesale; any such duty arises only from FCC regulations, not from the Sherman Act. See supra, at 8. There is no meaningful distinction between the "insufficient assistance" claims we rejected in Trinko and the plaintiffs' price-squeeze claims in the instant case. The Trinko plaintiffs challenged the quality of Verizon's interconnection service, while this case involves a challenge to AT&T's pricing structure. But for antitrust purposes, there is no reason to distinguish between price and nonprice components of [*22] a transaction....The nub of the complaint in both Trinko and this case is identical -- the plaintiffs alleged that the defendants (upstream monopolists) abused their power in the wholesale market to prevent rival firms from competing effectively in the retail market. Trinko holds that such claims are not cognizable under the Sherman Act in the absence of an antitrust duty to deal.
The District Court and the Court of Appeals did not regard Trinko as controlling because that case did not directly address price-squeeze claims.... This is technically true, but the reasoning of Trinko applies with equal force to price-squeeze claims. AT&T could have squeezed its competitors' profits just as effectively by providing poor-quality interconnection service to the plaintiffs, as Verizon allegedly did in Trinko. But a firm with no duty to deal in the wholesale market has no obligation to deal under terms and conditions favorable to its competitors. If AT&T had simply stopped providing DSL transport service to the plaintiffs, it would not have run afoul of the Sherman Act. Under these circumstances, AT&T was not required to offer this service at the wholesale prices the plaintiffs would have preferred.
2. The other component of a price-squeeze claim is the assertion that the defendant's retail prices are "too low." Here too plaintiffs' claims find no support in our existing antitrust doctrine.
"[C]utting prices in order to increase business often is the very essence of competition." ... In cases seeking to impose antitrust liability for prices that are too low, mistaken inferences are "especially costly, because they chill the very conduct the antitrust laws are designed to protect." ...To avoid chilling aggressive price competition, we have carefully limited the circumstances under which plaintiffs can state a Sherman Act claim by alleging that prices are too low. Specifically, to prevail on a predatory pricing claim, a plaintiff must demonstrate that: (1) "the prices complained of are below an appropriate measure of its rival's costs"; and (2) there is a "dangerous probability" that the defendant will be able to recoup its "investment" in below-cost prices....
In the complaint at issue in this interlocutory appeal, App. 10-24, there is no allegation that AT&T's conduct met either of the Brooke Group requirements. Recognizing a price-squeeze claim where the defendant's retail price remains above cost would invite the precise harm we sought to avoid in Brooke Group: Firms might raise their retail prices or refrain from aggressive price competition to avoid potential antitrust liability. ...
3. Plaintiffs' price-squeeze claim, looking to the relation between retail and wholesale prices, is thus nothing more than an amalgamation of a meritless claim at the retail level and a meritless claim at the wholesale level. If there is no duty to deal at the wholesale level and no predatory pricing at the retail level, then a firm is certainly not required to price both of these services in a manner that preserves its rivals' profit margins.
1. Institutional concerns also counsel against recognition of such claims. We have repeatedly emphasized the importance of clear rules in antitrust law. Courts are ill suited "to act as central planners, identifying the proper price, quantity, and other terms of dealing." ...
It is difficult enough for courts to identify and remedy an alleged anticompetitive practice at one level, such as predatory pricing in retail markets or a violation of the duty-to-deal doctrine at the wholesale level. ...Recognizing price-squeeze claims would require courts simultaneously to police both the wholesale and retail prices to ensure that rival firms are not being squeezed. And courts would be aiming at a moving target, since it is the interaction between these two prices that may result in a squeeze.
Perhaps most troubling, firms that seek to avoid price-squeeze liability will have no safe harbor for their pricing practices....At least in the predatory pricing context, firms know they will not incur liability as long as their retail prices are above cost....
The most commonly articulated standard for price squeezes is that the defendant must leave its rivals a "fair" or "adequate" margin between the wholesale price and the retail price.
2. Amici assert that there are circumstances in which price squeezes may harm competition. For example, they assert that price squeezes may raise entry barriers that fortify the upstream monopolist's position; they also contend that price squeezes may impair nonprice competition and innovation in the downstream market by driving independent firms out of business. ...
The problem, however, is that amici have not identified any independent competitive harm caused by price squeezes above and beyond the harm that would result from a duty-to-deal violation at the wholesale level or predatory pricing at the retail level. ... To the extent a monopolist violates one of these doctrines, the plaintiffs have a remedy under existing law. We do not need to endorse a new theory of liability to prevent such harm.
Lastly, as mentioned above, plaintiffs have asked us for leave to amend their complaint to bring a Brooke Group predatory pricing claim. We need not decide whether leave to amend should be granted. Our grant of certiorari was limited to the question whether price-squeeze claims are cognizable in the absence of an antitrust duty to deal. The Court of Appeals addressed only AT&T's motion for judgment on the pleadings on the plaintiffs' original complaint. For the reasons stated, we hold that the price-squeeze claims set forth in that complaint are not cognizable under the Sherman Act.
The case is Pacific Bell v. Linkline, 07-512.
Sunday, February 22, 2009
The Screen Actors Guild has rejected the AMPTP's "last offer," because it would not date beginning from the expiration of the last contract (June 2008), but prospectively, when economic conditions are much worse. SAG wants a contract that would put its members on the same bargaining footing as those of other entertainment industry members during the next contracting round. The studios rejected this notion. It's not clear where we are now, the night the Oscars are handed out in Hollywood. Read more here in a Hollywood Reporter article.
Friday, February 20, 2009
The Ninth Circuit has struck down California's video game statute, saying it violates the First and Fourteenth Amendments to the federal Constitution. The case is Video Dealers Software v. Schwarzenegger. Here's an excerpt.
We hold that the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the “variable obscenity” standard from Ginsberg v. New York , 390 U.S. 629 (1968). Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion. Accordingly, we affirm the district court’s grant of summary judgment to Plaintiffs and its denial of the State’s cross-motion. Because we affirm the district court on these grounds, we do not reach two of Plaintiffs’ challenges to the Act: first, that the language of the Act is unconstitutionally vague, and, second, that the Act violates Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment.
The AMPTP has made what it says is its last, best, and "final" offer to the Screen Actors Guild, and it claims this one represents a substantial jump over what members of the union received in the contract that expired last year. SAG, which has been undergoing great internal tension recently, has two months to consider the new offer. Read more here and here.
The website TMZ.com has published what it says is a photo of the singer Rihanna after singer Chris Brown allegedly assaulted her. Presumably the photo was leaked by law enforcement. Other media have also published the photo. CNN, however, has refused to publish the photo, although it is covering the story.